You have requested, on behalf of Jackson County, an advisory opinion as to several questions concerning Jackson County’s passage of an ordinance (the “Ordinance”) on November 1, 2001. The Ordinance seeks to regulate helicopter sightseeing operations in Jackson County. The Ordinance declares helicopter sightseeing operations to be a public nuisance and prohibits such operation except at a primary public airport. Further, a helicopter sightseeing operator must secure from the County Board of Commissioners an approved “Operations Plan.” Violation of the Ordinance is a misdemeanor and may be subject to abatement by a restraining order or injunction.

We are further informed by letter from Attorney Ben Bridgers that on or about November 4, 2001, his client, James Garst, who had been operating a helicopter sightseeing operation in Jackson County, was cited for a misdemeanor violation of the Ordinance. Mr. Bridgers’ motion to dismiss the misdemeanor citation was granted by Jackson County District Court Judge Steven J. Bryant in December 2001. The memorandum of law filed with the court in support of the motion to dismiss argued (1) that the Ordinance was invalid under the federal preemption doctrine, and (2) that the helicopter sightseeing operation was not a public nuisance. You have also informed us that Jackson County did not appeal the dismissal and that there is no currently pending legal action involving the Ordinance.

Specifically, you have sought opinions as to the following issues: (1) whether the enforcement of N.C. Gen. Stat. § 63-18 would be impacted or preempted by federal law relating to aviation matters;

(2) whether an ordinance banning helicopter sightseeing operations such as that enacted in neighboring Haywood County is constitutionally permissible; (3) whether Jackson County’s current ordinance regarding helicopter sightseeing operations can be modified to comply with applicable state and federal law while still regulating helicopter sightseeing operations; and (4) what other methods of resolving this issue might be available to Jackson County.

MAILING ADDRESS:

TELEPHONE:

919-733-3316

LOCATION:

DEPARTMENT OF TRANSPORTATION

FACSIMILE:

919-733-9329

TRANSPORTATION BUILDING

ATTORNEY GENERAL’S OFFICE

1 SOUTH WILMINGTON STREET

1505MAIL SERVICE CENTER

RALEIGH,NC 27601

RALEIGH,NC 27699-1505

We will address each of these questions in turn.

1. Federal Law Impact on N.C. Gen. Stat. § 63-18.

Chapter 63 of the North Carolina General Statutes must be read and interpreted in conjunction with federal law governing aviation.

Federal preemption of state law occurs by virtue of Article VI, Section 2, of the United States Constitution. The “Supremacy Clause” states, in pertinent part, as follows:

This constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or the laws of any state to the contrary notwithstanding.

Any airman or passenger who, while in flight over a thickly inhabited area or over a public gathering within this State shall engage in trick or acrobatic flying, or in any acrobatic feat, or shall except while in landing or taking off, fly at such a low level as to disturb the public peace or the rights of private persons in the enjoyment of their homes, or injure the health, or endanger the persons or property on the surface beneath, or drop any object except loose water or loose sand ballast, shall be guilty of a Class 1 misdemeanor. (emphasis added)

Federal statutes and regulations govern sovereignty over airspace. The United States government has exclusive sovereignty of airspace of the United States. 49 U.S.C. § 40103 (a) (1). The Code of Federal Regulations establishes federal rules for, among other things, minimum operating altitudes that are applicable to the operation of all aircraft within the United States and within 12 nautical miles from the coast of the United States. 14 C.F.R. Part 91. 14 C.F.R. § 91.119 sets forth altitude requirements for aircraft. In congested areas of cities, towns, settlements or any open air assembly of persons, aircraft must be operated over congested areas at an altitude of no less than 1,000 feet above the highest obstacle within a 2,000 foot horizontal radius of the aircraft. 14 C.F.R. § 91.119(b). Aircraft may be operated over non-congested areas at an altitude of no less than 500 feet, except over open water or sparsely populated areas. 14 C.F.R. § 91.119(c). Helicopters may be operated at altitudes of less than less than 1,000 feet over congested areas or at altitudes lower than 500 feet over non-congested areas if the operation is conducted without harm to the persons or property on the surface 14 C.F.R. § 91.119(d). Helicopters must also comply with any additional rules regarding flight routes and altitudes promulgated by the Administrator of the Federal Aviation Administration (“FAA”). Id. Federal law thus prescribes the operating altitudes and flight routes of aircraft, including helicopters.

The North Carolina Supreme Court has observed that Chapter 63 of the North Carolina General Statutes,which deals with aviation matters, contemplates full cooperation and compliance with federal law governing aviation. City of Charlotte v. Spratt, 263 N.C. 656, 665, 140 S.E.2d 341, 347 (1965). To achieve this cooperation and compliance, it would appear that the prohibition against “flying at such a low level as to disturb the public peace or the rights of private persons in the enjoyment of their homes” contained in N.C. Gen. Stat. § 63-18 should be read as a prohibition against flying contrary to that mandated by federal law. In other words, it is likely that compliance with federal altitude and route requirements would equate with compliance with the altitude provisions of N.C. Gen. Stat. § 63

18.

2. Enactment of an Ordinance Similar to that in Effect in Haywood County.

Haywood County’s helicopter sightseeing ordinance states, in pertinent part, that “It shall be unlawful and a misdemeanor to operate or maintain any helicopter sightseeing operation from or within Haywood County.” Given the federal government’s exclusive sovereignty over United States airspace, and its pervasive regulation of aviation matters, this ordinance is likely preempted pursuant to the Supremacy Clause.

Three criteria exist for determining whether federal regulation supercedes state law or local ordinance. Federal law supercedes state law (1) where Congress has occupied the field to the exclusion of parallel state regulation, or (2) where the dominant interest of the federal government precludes state intervention, or (3) where the administration of state acts would conflict with the operation of the federal plan. Pennsylvania v. Nelson, 350 U.S. 497, 76 S. Ct. 477, 100 L. Ed. 640 (1956)(federal Smith Act, which prohibits the knowing advocacy of the overthrow of the government of the United States by force and violence, supercedes the enforceability of the Pennsylvania Sedition Act which proscribes the same conduct). “Preemption is predicated upon Congressional intent. The will of Congress to monopolize an area of legislation may be expressed in the authorizing statute and in the regulations pursuant to the statute.” Country Aviation, Inc. v. Tinicum Township, 1992 U.S. Dist. LEXIS 19803 (E.D. Pa. 1992)(township ordinance was preempted by federal law occupying the field of aircraft noise control regulation), citing Hillsborough County v. Automated Medical Labs, Inc., 471 U.S. 707, 105 S. Ct. 2371, 85 L. Ed. 2d 640 (1985).

The United States Supreme Court has applied the preemption doctrine to issues of air traffic regulation. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 96 S. Ct. 1854, 36 L. Ed. 2d 547 (1973). In the City of Burbank case, the City of Burbank sought to enact an ordinance establishing a curfew on the takeoff and landing of jets from the Hollywood-Burbank airport, a privately owned airport. The Supreme Court declared the ordinance unconstitutional as a violation of the Supremacy Clause. The Court observed that aircraft flights were extensively regulated by the FAA. 411 U.S. at 626-627, 96 S. Ct. at 1856, 36. L. Ed. 2d at 550. The Court also observed that aircraft noise was the subject of FAA and Environmental Protection Agency (EPA) regulation. 411

U.S. at 628-630, 96 S. Ct. at 1857-1858, 36 L. Ed. 2d at 551-552. The Supreme Court stated that although states may generally regulate noise through exercise of the police power, “[t]he pervasive control vested in the EPA and the FAA . . . left no room for curfews or other local controls.” 411 U.S. at 638, 96 S. Ct. at 1862, 36 L. Ed. 2d at 556.

The Second Circuit Court of Appeals has examined the issue of restrictions on helicopter flights in National Helicopter Corp. of America v. City of New York, 137 F.3d 81 (2nd Cir. 1997). The plaintiff, the fixed base operator of a heliport owned by New York City, challenged a municipal ordinance imposing various restrictions on the heliport. The restrictions sought by the City included:

(1) restriction of weekly operations to between 8 a.m. and 8 p.m.; (2) restriction of weekend operations to between 10 a.m. and 6 p.m.; (3) the phasing out of weekend operations entirely; (4) the reduction of helicopter operations by 47 percent overall; (5) the barring of helicopters of a certain size from use of the heliport for sightseeing operations; (6) the prohibition of sightseeing flights over certain sections of the city and the prescribing of routes for certain flights; and (7) the requirement that helicopters using the heliport be marked for identification from the ground. Id. at 86.

The Second Circuit held that a limited exception to the general rule of complete federal preemption of aviation matters existed when a state or local government acts as a proprietor of an airfield. Id. at 88. Under this “proprietary exception” state and municipal proprietors may adopt rational regulations with respect to the permissible level of noise created by aircraft using their airports to protect the population surrounding the airport. Id. The court also held that the operating hour restrictions on weekends and weekdays, the phasing out of weekend operations, and the 47 percent operations reduction, were all reasonably related to the goal of limiting noise in the airport area. Thus, these were a valid exercise of the city’s proprietary function. Id. at 88-90.

However, the court also held the helicopter size restrictions were not reasonably related to the proprietary function of noise reduction and were thus unenforceable. Id. at 91. It was also held the sightseeing restrictions, the prescribing of flight routes, and requirement of certain markings were unenforceable. Id. at 92. These latter areas were governed by federal law, and the preemption doctrine applied. Id.

Although it is not controlling authority, the National Helicopter Corp. case would likely be persuasive to a North Carolina court. Given that federal law extensively regulates facets of aircraft operation such as operating altitude and flight routes, it is likely that North Carolina courts would follow the rationale of National Helicopter Corp. Therefore, any county ordinance imposing restrictions similar to those that the court invalidated in National Helicopter Corp. would likely be found unconstitutional. The Haywood County ordinance goes even further by banning helicopter operations in Haywood County altogether. It is likely a court would invalidate the Haywood County ordinance.

3. Modification of the Jackson County Ordinance.

Your third question is whether the Ordinance could be modified to comply with applicable state and federal law while still regulating helicopter operations.

Section 2 of the Ordinance purports to classify helicopter sightseeing operations as a public nuisance. A “public nuisance” is defined as one which generally affects the local community at large, not a few individuals. State ex rel. Carpenter v. Boyles, 213 N.C. 432, 448, 196 S.E. 850, 861 (1938) (operation of “speakeasy” deemed a public nuisance). It is not necessary for an enterprise to be criminal in nature to constitute a public nuisance, merely that it, in reasonable relationship, tends to adversely affect the public morals, health, safety, thrift, or economy. State v. Brown, 221 N.C. 301, 304-305, 20 S.E.2d 286, 289-290 (1942)(horse race betting parlor a public nuisance). Under this standard, it does not appear that the operation of the helicopter sightseeing service can be classified as a public nuisance. While the helicopter sightseeing operation apparently affects individual property owners in Jackson County, it does not appear to adversely affect the public as a whole.

Likewise, it does not appear that the helicopter sightseeing operation can be considered a private nuisance per se or at law. A private nuisance per se is a condition that is a nuisance at all times under all circumstances. Morgan v. High Penn Oil Co., 238 N.C. 185, 191, 77 S.E.2d 682, 687 (1953)(operation of a lawful oil refinery cannot be a private nuisance per se). A helicopter sightseeing business does not constitute a nuisance per se because it is an otherwise lawful enterprise. Id.

Classifying particular activities of the helicopter sightseeing operation as nuisances per accidens might be possible. A nuisance per accidens is a use which is unreasonable under the circumstances of a particular case and which results in substantial interference with the use and enjoyment of land by another. Id. at 92, 77 S.E.2d at 687. However, the party with standing to maintain an action for nuisance would be the individual property owners affected, not a local governing board. The proper method to abate a private nuisance is an action for damages or abatement brought by the party injured. 58 AM. JUR. 2D Nuisances, § 268 (2002). A state or political subdivision thereof may abate public nuisances, but not private nuisances. 66 C.J.S. Nuisances, § 64 (2001).

Section 3 of the Ordinance limits helicopter sightseeing operations to the “primary public airport.” As noted above, since the helicopter sightseeing operation could only at best be characterized as a private nuisance, efforts at abatement or amelioration by Jackson County would be unlikely to withstand judicial scrutiny. Even if the helicopter sightseeing operation were moved to the public airport, there would be significant aspects of the sightseeing operation that Jackson County could not regulate, such as flight altitudes and sightseeing routes that are subject to preemptive federal regulation.

Section 4 of the Ordinance mandates the filing of an “Operations Plan” that “shall prescribe explicitly the conditions under which the helicopter sightseeing flights shall be conducted.” The operations plan, and thus helicopter flights, are subject to approval from Jackson County. It is doubtful this provision of the Ordinance would be found valid. Implicit in the structure of the operations plan is county regulation of matters already regulated under federal law which, as previously noted, would preempt county regulation in this area.

In conclusion, we are of the opinion that Jackson County may not use the Ordinance to regulate helicopter sightseeing operations based on the facts presented.

4. Other Methods for Resolving Issues.

Your final question concerned steps that Jackson County could take to address the problems associated with helicopter operation. We note that the proprietor of the service has expressed some willingness to agree to be bound by restrictions in excess of those mandated by federal law. Negotiations along these lines would appear to be the best course of action available to the County.

We trust that this Advisory Opinion will be of assistance to you in advising Jackson County. Sincerely,